Summary
In Caldwell v. Saint Paul-Mercury Indemnity Co. (1950), 210 Miss. 320, 49 So.2d 570, the wife of the assured had her diamond ring on her finger in her own house.
Summary of this case from Ruby v. Farmers Mut. Automobile Ins. Co.Opinion
No. 37699.
December 18, 1950.
1. Insurance — theft — proof, sufficiency of.
In an action on a policy insuring against theft, the mere disappearance of an article is not of itself sufficient to warrant finding of theft; but direct proof is not necessary and a finding of felonious abstraction may rest on circumstantial evidence where sufficient to warrant the inference that the loss was due to theft.
2. Insurance — theft — presumption clause, mysterious disappearance.
Where a policy insuring against theft contains a provision that "mysterious disappearance of any insured property may be presumed to be due to theft" and the proof showed that the insured diamond disappeared from a ring between the hours of seven and nine-thirty p.m. o'clock in the house of the insured and that an immediate and thorough search was made by members of the family which was continued early the next morning with the aid of a maid using the most thorough means but without success; that two days thereafter the maid on instructions again made a search in the absence of the insured, and the maid disappeared before the owner's return leaving part of her wages due her and has never been heard of since, the circumstances were such as to sustain a finding that there was a mysterious disappearance thus raising the presumption of theft and to make it a question for the jury on the issue of theft vel non.
3. Trial — instructions — appeal.
A party may not complain of instructions where he has procured similar instructions which use substantially the same language or theory.
Headnotes as approved by Ethridge, C.
APPEAL from the circuit court of Hinds County; H.B. GILLESPIE, Judge.
Chill, Landman Gordon and Marvin A. Cohen, for appellant.
The trial court was correct in refusing to grant a peremptory instruction for the defendant and the circuit court was in error in holding that the peremptory instruction should have been granted and in holding that the case should not have been allowed to go to the jury.
The effect of a request for a peremptory instruction has been considered numerous times by this Court. One of its latest expressions was in the case of Thomas v. Mississippi Products Company, 44 So. (Miss.) 2d 556, 557, in which it was said: "The well settled rule is that all evidence, and the reasonable inferences that may be drawn therefrom, must be taken as true in favor of a party against whom a peremptory instruction is asked. Stricklin v. Harvey, 181 Miss. 606, 179 So. 345; Long v. Patterson, 198 Miss. 554, 22 So.2d 490; Allgood v. United Gas Corporation, 204 Miss. 94, 37 So.2d 12; and cases therein cited." Other recent Mississippi cases so holding are Montgomery Ward v. Skinner, 200 Miss. 444, 25 So.2d 572, and Davidson v. McIntyre, 202 Miss. 325, 32 So.2d 150.
(1) Under the evidence, it was, at the least, a jury question as to whether the presumption created by the policy ever came into effect. It was also, at the least, a jury question as to whether the presumption, once existing, was rebutted by the defendant's testimony.
The contract between the parties provided that "mysterious disappearance of any insured property shall be presumed to be due to theft".
Thus the first question to be determined is — was it a jury question as to whether the basic fact upon which the presumption rested existed, that is, was it a jury question as to whether there was a mysterious disappearance?
Where more than one reasonable inference can be drawn from the evidence, then it is a question for the jury to decide. Sovereign Camp, WOW v. Banks, 177 Miss. 279, 170 So. 634; Loper v. Yazoo M.V.R. Co., 145 So. 743; See also, Jefferson v. Yazoo M.V.R. Co., 194 Miss. 729, 11 So.2d 442; Baltimore and Ohio R. Co. v. Postom, 177 F.2d 53, 54 (CA DC); Davis v. St. Paul Mercury Indemnity Co., 227 N.C. 80, 40 S.E.2d 609, 169 A.L.R. 220.
It was thus a jury question as to whether there was a mysterious disappearance of the property, which would form a basis for presuming theft.
It was also a jury question at the very least as to whether the presumption, once existing, was rebutted by the evidence of the facts surrounding the disappearance.
The only evidence, or inference therefrom, to rebut the presumption is that the stone was merely lost or misplaced in the house. It appears manifest in this case that the trial judge could not have ruled as a matter of law that the presumption was rebutted by such speculative evidence. Whether the rebutting evidence is sufficient to overcome the presumption is a question for the jury. McCreary v. Stevens, 156 Miss. 330, 126 So. 4; Young v. Westphalen, 111 Miss. 765, 72 So. 193.
(2) The question was for the jury, even disregarding any presumption, under the facts of this case as to whether the loss of the stone was covered by the policy.
Even though there were no presumption in this case, it would be a jury question as to whether the loss of the stone was due to theft. It appears clear from the after cited cases that even if the provision in the policy did not provide that mysterious disappearance will be presumed to be theft, even so, there is no basis for the contention that trial court committed error in refusing a peremptory instruction. In all of the following cases, even though there was no presumption created by the policy, it was held to be a question for the jury as to whether there has been a loss of such a nature covered by a robbery or burglary policy. Fireman Bond Indemnity Co. v. Perry, 149 Fla. 410, 5 So.2d 862; Capital Savings Loan Co. v. Aetna Casualty Surety Co., 274 Mich. 447, 264 N.W. 859; Nixon v. Indemnity Insurance Co., 117 Cal.App. 410, 3 P.2d 968. See 22 Appelman, Insurance Law Practice, Sec. 12935, p. 109, Chap. 449.
In Reed v. American Bonding Co., 102 Neb. 113, 116 N.W. 196, L.R.A. 1916C 63, it was held on a policy insuring against burglary, theft, or larceny, and providing that mere disappearance of the article or money should not be deemed sufficient evidence of this loss by burglary, theft or larceny, evidence that a servant girl employed by the insured had access to the room in which the jewelry was kept, and evidence from the departure from the plaintiff's services contemporanously with the discovery of the loss, when taken in connection with the unquestionable character of the insured, showed facts upon which larceny might be justly inferred and required the matter to be submitted to the jury.
In Kroloff v. Southern Surety Company, 197 Iowa 1244, 198 N.W. 629, it was held that wherever that the maid left soon after the alleged theft, that there was sufficient evidence to go to the jury as to whether there was a theft under the policy. See also, Emery v. Ocean Accident Guaranty Co., 209 Mich. 295, 176 N.W. 566, another case where the maid left soon after the theft.
Lipscomb Ray, for appellee.
We submit that in the case at bar the facts show that the stone was lost and the jury should not have been allowed to pass on it due to the fact that a presumption was found but not the fact that the stone was stolen. They, under the circumstances, should not have found this fact because if Mrs. Caldwell and her daughters, and Mrs. Caldwell staying right with the maid the next day, could not find the stone, how could the maid steal it if the stone could not be found?
Certainly all reasonable inferences point to the fact that Mrs. Caldwell's stone is still in the sink trap or lavatory trap of her home, as no one could find the stone after a thorough search and certainly the evidence here could not create a presumption that her stone was stolen when the uncontradicted proof was that it was lost and could not be found by anyone, and the plaintiff has, so far as we know, still failed to look in the places most likely to hold the stone, to wit, the drain traps of the lavatory and sink. Certainly, the circumstantial evidence here is not of such a conclusive nature that it is not reasonably susceptible of two equally reasonable inferences. Under the evidence the jury's verdict is nothing more than a speculative proposition and if allowed to stand and such a rule were endorsed by this Court this would open up the gate to an unlimited amount of fraud against insurance companies.
Under instruction number 1 for plaintiff as set out in the record at page 34 the jury was allowed to speculate on possibility in that the undisputed proof shows that Mrs. Caldwell and her daughters could not find the stone on the night it was lost and that she, Mrs. Caldwell, stayed at home with the maid all the next day and searched the house, and could not find the stone. The ring itself was being worn on Mrs. Caldwell's hand and there is no conflict as to the fact that the stone was lost from the ring by natural wear and tear. There is no doubt that the house was given a thorough search under the careful supervision of Mrs. Caldwell, yet under instruction number 1 the jury was allowed to consider the fact that the maid did not show up for work the following Tuesday as a presumption that she had stolen the stone. This was allowed even though it was shown that a thorough search as aforementioned failed to yield the stone. The instruction states that the insured is not required to produce evidence excluding the probability that the property was mislaid or lost. Our Court on too numerous occasions to cite has laid down the rule that lawsuits are decided on probabilities and not possibilities. Since Mrs. Caldwell was definite as to the time within which the stone was lost and was positive that she did not go from the house and since such a thorough search did not yield the stone after it was lost, and since she further testified that she had been working at the kitchen sink and had washed her hands in the bathroom lavatory, then it stands to reason, and in all probability, as she was positive of these things, the stone fell out either into the sink or the lavatory and still remains in the drain of one of those places. Since such a thorough search failed to find the stone the fact that the maid did not show up the following Tuesday creates a possibility and not a probability and the court below found upon such. This case as tried in the county court had a verdict rendered in it on the scintilla rule of evidence which is not recognized in this state and on appeal to the circuit court the judge immediately saw this and thus his action in reversing and rendering and we submit that this case should be affirmed.
In order to sustain plaintiff's contention we would have to indulge in the following inferences:
1. That the stone was lost in some place in the house not accessible to a finder.
2. That the stone was not removed from the house.
3. That the stone was actually found.
4. That the stone was found by a person who knew the owner thereof.
5. That the stone was found by a person who knew the owner appreciated its value and then wrongfully converted the stone to his or her own use.
In other words, to sustain the appellant's contention we would have to draw inference on inference on inference.
This is a suit by appellant, Jack I. Caldwell, against appellee, St. Paul Mercury Indemnity Company, on a theft insurance policy for the loss by theft of a diamond from a ring of appellant's wife.
On September 25, 1947, a diamond disappeared from a ring on Mrs. Caldwell's hand. She testified that she had the ring on her finger with the stone in it about seven o'clock that night, while she was sitting in the living room of their home with her daughters, the youngest of whom was fifteen years, but at about nine or nine-thirty, before she started to go to bed, she noticed that the stone was missing. She and her children looked for it in the house that Thursday night, but were unable to find it. The next morning her maid came early, and she and the maid looked for it again, even using a vacuum cleaner, and straining the refuse from that instrument. The maid came again on Saturday and was paid for that week's work. She did not work on Sunday, but came again on Monday morning. Mrs. Caldwell instructed the maid to go into the closet with the vacuum cleaner, to clean the rugs, and to continue to search for the stone that day. Mrs. Caldwell went to work, and when she returned late that afternoon, the maid had left and never came back, although Mrs. Caldwell owed her $2 for that day's work. Appellant has not been able to locate the maid since that time, nor the stone. The maid had been working for appellant about six months, and apparently appellant trusted her and had had no difficulty with the maid in other respects.
Mrs. Caldwell testified that she knew the stone was in the ring at seven o'clock after she had eaten supper, and that she did not go out of the house between the times she knew she had the stone and she discovered it to be missing later that evening. She had owned the ring for five years, having purchased it in 1942, and had not had the mountings on the stone tightened. She stated that the ring must have disappeared in the house. She testified that she does not remember whether she washed the dishes that night, but that very probably she washed her hands in the lavatory, and that she did not have a plumber examine the plumbing in either the kitchen or the bathroom in a search for the ring.
Two other witnesses for appellant testified only on the value of the stone at the time of loss, and the making of proof of loss. Testimony on value was also presented by defendant's sole witness, a jeweler, who also testified that the mountings on the ring were worn, and in his opinion the stone came out of the mountings by natural wear.
The policy contained a clause reading as follows: "Theft. The word `theft' includes larceny, burglary, and robbery. Mysterious disappearance of any insured property shall be presumed to be due to theft."
This suit originated in the County Court of the First Judicial District of Hinds County, Mississippi, in which a jury returned a verdict for the present appellant, who was the plaintiff there. On appeal the circuit court held that the trial court should have granted a peremptory instruction for the insurance company, appellee here, and acted accordingly.
Appellant argues that the trial court was correct in submitting the case to the jury. He says that it was a jury question as to whether the presumption created by the policy ever came into effect by "mysterious disappearance", and as to whether the presumption once existing was rebutted by the evidence. He further says that even disregarding the presumption, the question was for the jury under these facts as to whether the stone was covered by the theft policy. Appellee contends that it is reasonable to presume that the stone fell from the setting either into the lavatory or the kitchen sink, and that it is still there, and that the presumption, if it ever existed, was rebutted by this and other evidence. Appellee says that the stone was first lost in appellant's house, and therefore this theft policy does not apply, and that the jury's verdict was purely speculative without any permissible circumstantial evidence of theft.
The case focuses on three questions: (1) whether there was a "mysterious disappearance" which put into operation the contractual procedural presumption of theft; (2) whether the presumption was rebutted by the evidence; and (3) if it was rebutted, whether there was enough circumstantial evidence of theft to make a question for the jury on the issue of theft vel non.
Certain basic principles are pertinent in considering this rather singular factual situation and theft insurance policy. There have been, over a period of years, many cases involving the question of whether the evidence was sufficient to justify a jury's finding of theft and liability under a theft insurance policy. (Hn 1) While mere disappearance of an article is not sufficient of itself to warrant a finding that its loss was due to theft, the courts have held consistently that a finding of such a felonious abstraction may in a proper case rest upon circumstantial evidence. Thus, "proof that the loss was the result of . . . theft is not necessary if facts are shown which warrant the inference that the loss was due" to theft. 29 Am. Jur., Insurance, Section 1516.
Even in cases where the policy required "direct and affirmative" or "conclusive" evidence, the courts have refused to construe these terms in a strict technical sense, because to do so would render the policy valueless except in the most unusual cases, and have in policies containing that clause sustained verdicts based on wholly circumstantial evidence. Note, 41 A.L.R. 846, 851. See also Annotations in 44 A.L.R. 471; 54 A.L.R. 467; 169 A.L.R. 233. In Jackson Steam Laundry v. Aetna Casualty Surety Co., 1930, 156 Miss. 649, 126 So. 478, the burglary policy contained a very restricted clause and the court found that there was no circumstantial evidence justifying submitting the issue to a jury. It is not applicable to the present case.
The only case which we have found involving the interpretation of a similar "mysterious disappearance" clause is Davis v. St. Paul Mercury Indemnity Co., 1946, 227 N.C. 80, 40 S.E.2d 609, 611, 169 A.L.R. 220. The plaintiff sued on a policy with a clause exactly similar to the present one. Plaintiff had put $97 in his pocket and gone on a fishing trip with a friend. The boat capsized and he was thrown in the water. After he had recovered his fishing equipment he went ashore, and for the first time since leaving home he felt for his money and found that it had in some manner disappeared. The trial court refused to submit to the jury the issue of whether plaintiff had sustained the loss by theft, and only submitted whether plaintiff's property had mysteriously disappeared, and in what amount, if any, defendant was indebted to plaintiff.
The Supreme Court held that the trial judge erred because the policy was a theft policy and did not cover property mislaid or lost. However, it pointed out that the "mysterious disappearance" clause was designed to afford the insured a larger measure of protection than under the old theft policies, and that it created a rule of evidence binding on the parties. Theft is presumed until the presumption is rebutted, but the burden of proof is at all times on the plaintiff. The Court held that a mysterious disappearance is one "under unknown, puzzling or baffling circumstances which arouse wonder, curiosity, or speculation, or circumstances which are difficult to understand or explain." It then said: "This showing alone is sufficient to repel the motion to dismiss as in case of nonsuit. If the jury shall find therefrom that the property did in fact mysteriously disappear, then such finding compels the inference of theft, unless the facts and circumstances surrounding the disappearance are such as to rebut the presumption the parties have agreed shall arise from the proof of the mysterious disappearance. This is for the jury to decide.
"It is true, as argued by defendant, that inasmuch as the only person with plaintiff was a man of high character, it is plausible to conclude the money was not stolen. It is likewise possible that it was lost when he fell in the water. These are speculations or surmises generated by the circumstances surrounding the mysterious disappearance. These circumstances must be considered by the jury in arriving at a verdict. They do not, as a matter of law, rebut the presumption of theft."
The Davis case is discussed in 169 A.L.R. at page 257, and in 29 Am. Jur., Insurance, 1949 Supplement, page 144. The Court remanded the case for a jury issue under the principles stated above. We think that the present problem is a stronger one on the factual issue of theft than is the Davis case.
The jury here could have found that the stone mysteriously disappeared. Quite apparently the stone dropped from its setting in the home of appellant between seven and nine-thirty that night. Moreover, though Mrs. Caldwell did not know where the stone was, it still remained her property while in her and appellant's house. See 34 Am. Jur., Lost Property, Secs. 2, 3, 6, 14. Of course the policy does not cover a mere loss, but the jury could have found, as it apparently did, that the maid later located the stone and appropriated it for her own use. A relevant circumstantial factor is that the owner carefully looked for the stone, and has never found it to this day. McDuff v. General Accident F. L. Assur. Corp., 1925, 47 R.I. 172, 131 A. 548. Others are the disappearance of the maid on the day after she had been looking for the stone, and her failure to collect from appellant wages owed to her. Emery v. Ocean Accident Guarantee Co., 1922, 209 Mich. 295, 176 N.W. 566; Reed v. Am. Bonding Co., 1916, 102 Neb. 113, 166 N.W. 196, L.R.A. 1918C, 63; Kroloff v. Southern Surety Co., 1924, 197 Iowa 1244, 198 N.W. 629. It is true that it is possible that the stone is still in the house, possibly in the lavatory or the kitchen sink, but these are speculations or surmises generated by the circumstances surrounding the mysterious disappearance. They must be considered by the jury in arriving at a verdict, but they do not as a matter of law rebut the presumption of theft. Whether that presumption was rebutted is for the jury to decide.
In the absence of a presumption, the puzzling circumstances surrounding the total disappearance of the stone and the evidence here would justify the jury in finding an inference of theft. (Hn 2) In brief, there were adequate facts to sustain the jury's finding that there was a mysterious disappearance of the stone and therefore to create a presumption of theft. Whether that presumption was rebutted by other evidence and possibilities is a question for the jury. And even if it were rebutted we think that there was enough circumstantial evidence of theft to make a question for the jury on the issue of theft vel non.
Appellee complains of certain instructions given the appellant by the trial court, dealing with the presumption of theft, but we do not think that appellee was prejudiced by them, and note that appellee also obtained an instruction under the same theory. (Hn 3) A party may not complain of instructions where he has procured similar instructions which use substantially the same language or theory. Patterson v. State, 1931, 159 Miss. 882, 132 So. 558; Ross v. Louisville N.R. Co., 1938, 181 Miss. 795, 181 So. 133. Appellee's motion to strike "Appendix A" to appellant's brief is sustained, but that does not affect the conclusions already outlined above.
The judgment of the circuit court is therefore reversed, and that of the county court for appellant is reinstated.
Reversed and judgment of Trial Court for appellant reinstated.
The above opinion is adopted as the opinion of the Court, and for the reasons therein indicated the case is reversed, and judgment of the trial court for appellant is reinstated.
I am in full accord with the controlling opinion herein. I agree that, by procuring instructions of like import with those of the plaintiff, the defendant is denied the right to complain.
The use of presumptions in the instructions ought never to be permitted, since, in the first place they are as legal devices only for the court, and, as processes of reasoning, clearly argumentative.
But here the so-called presumption is not such in a judicial sense. There is no presumption of law or fact that an article which disappears mysteriously has been stolen. This assumption is created by the contract and is tantamount to a definition of theft in terms of such disappearance. That is, they mean the same thing. Theft is the hazard insured against and not disappearance, but they were defined as identical.
So that it was not improper to charge, as authorized by the contract, that mysterious disappearance created a presumption of theft. Indeed, such loss is ex vi termini theft. Nor is such a rebuttable presumption, for it is not a true legal presumption. True, the fact of the loss or of the theft is rebuttable as any other fact. It is as if the appellee had insured against a loss through mysterious disappearance. The fact of disappearance could be rebutted by appearance; the mystery could be dissipated by knowledge. Short of such disclosures, the terms mean the same thing.
Wherefore, this case presents only an apparent exception to the judicial policy against the use of inferences and presumptions in instructions.
In my opinion the instructions could properly have authorized recovery upon preponderant evidence of such disappearance, since, by contract and not legal presumption, this was sufficient.